April 4, 1975
Mr. Gerald Andrews, Commissioner
Bureau of Administration
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-60
Whether or not a member of the Legislature is exempt from the traffic regulations of the Department of Administration
Dear Mr. Andrews:
You have asked whether a member of the Legislature is exempt from the traffic regulations of the Department of Administration.
SDCL 5-15-34 permits the commissioner of administration to promulgate rules
to promote the health, safety and general welfare, to prohibit public intoxication, disturbances, and disorderly assemblies, to keep the peace, and to declare what shall constitute a nuisance within the buildings of the capitol complex and the capitol grounds. These regulations may include the regulation of hours of general public accessibility to buildings within the capitol complex and the regulation of obstruction, speed limits and parking on the streets and alleys within the capitol grounds.
SDCL 5-15-35, as amended by Senate Bill No. 42 passed as an emergency measure and signed into law by Governor Kneip on February 15, 1975, provides that the penalty for violating the commissioner's rule shall not exceed a fine of one hundred dollars (with no imprisonment). SDCL 5-15-26 allows the commissioner to appoint employees and SDCL 23-3-2 allows the commissioner to designate certain employees to be capitol policemen to enforce the rules of the commissioner.
Incidentally all law enforcement officers have jurisdiction to enforce the rules of the commissioner. 1967-68 AGR 416, 418; SDCL 22-1-3 and 5-15-34 to -35.
You have promulgated rules numbered 10:01:01:01 to 10:01:03:01 pursuant to SDCL 5-15-34 and 1-26.
Section 11 of Article III of the South Dakota Constitution provides:
Senators and representatives shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same . . . .
There are no precedents dealing with this section. However, clause 1 of section 6 of Article 1 of the United States Constitution, which is virtually identical to the state constitution, provides:
The Senators and Representatives . . .shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same. . . .
In Granel v. U.S., 408 U.S. 606, 614-15, 33 L. Ed. 2d 583, 92 S. Ct. 2614, 2621-22 (1972), the Supreme Court held that the privilege protects congressmen from civil, not criminal, arrest:
It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members.
The Court went on to state:
Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.
Therefore, it is my opinion that members of the Legislature are not privileged from arrest and prosecution for violations of the traffic rules of the Department of Administration. They may be arrested and held to answer even during the session.
However, your officers who make arrests should be made aware of SDCL 2-4-7 which provides:
Every person who willfully, by intimidation or otherwise, prevents any member of the Legislature of this state from attending any session of the branch of which he is a member, or of any committee thereof, or from giving his vote upon any question which may come before such branch, or from performing any other official act, is guilty of a misdemeanor.
You should also note SDCL 15-11-5 which would apparently prohibit the trial of any legislator during the session. See State v. Caldwell, 58 S.D. 246, 235 N.W. 649 (1931).
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:rw
